This claim, filed on May 2, 2000, seeks damages for an incident occurring on
March 14, 1999 at the dental office at Wende Correctional Facility (Wende),
sounds in dental negligence/malpractice, and seeks $50,000 for pain and
suffering and $50,000 for medical malpractice. During the trial, the Defendant
made a motion to dismiss that part of the claim which sounded in medical/dental
malpractice, primarily due to the lack of an expert witness, and that motion was
granted. Accordingly, the only remaining cause of action is one that sounds in
According to the testimony, in 1998, Claimant had a dental procedure commenced
at Orleans Correctional Facility (Orleans), where seven of his teeth were
removed. Claimant thereafter became ill with an unrelated but very serious
medical condition and was taken to Strong Memorial Hospital for a period of two
months, prior to the completion of the dental work, to wit, the replacement of
the extracted teeth. However, upon his discharge from the hospital, Claimant
was not returned to Orleans, but was sent to Wende. Claimant contends that the
dentist at Wende, rather than simply working on the replacement of the extracted
teeth, wanted to remove all his remaining teeth.
The primary focus of this claim is Claimant's assertion that he was not
provided with dentures/false teeth for the seven teeth already removed during
the period of some 22 months while he was housed at Wende between March 1999 and
December 2000, and damages resulting therefrom.
Claimant suggests that the dentist at Wende was prejudiced, because of
Claimant's illness. He refused to allow the dentist at Wende to perform any
additional extractions because Claimant felt that such extractions were not
necessary. Claimant was called back periodically to the dental office at Wende
for cleaning, etc., but each time the dentist attempted to persuade him to allow
additional extractions, because Claimant alleges that he said "it would be
easier for him." The dentist purportedly failed to arrange for such false teeth
for this entire period while attempting to persuade Claimant to allow further
At one point, after alleged pressure from a physician at Wende, Claimant had
allegedly agreed to allow the extraction of tooth Number 13, but the next day
when he was in the dental office for such extraction, he withdrew his consent
because, in his opinion, tooth Number 13 "did not need to be extracted."
Indeed, Claimant testified that he still had tooth Number 13 in his mouth at the
trial of this claim, attempting to show that the dentist was trying to extract
healthy teeth. When Claimant declined to permit that extraction, the Wende
dentist allegedly announced that he was "through with you." So for the period
of his incarceration at Wende, no false teeth were provided and no preparations
for such procedure were ever started. In December 1999, Claimant was
transferred to Attica Correctional Facility (Attica), where within 90 days the
Attica dentist allegedly started the process, and eventually he received the
partial upper and lower dentures to replace those seven teeth extracted at
Orleans some years earlier.
The essence of this claim is for negligence related to that extended period of
time of some 22 months while he was housed at Wende when the dentist failed to
start the process for the false teeth. Claimant testified that he saw the Wende
dentist at six month intervals for teeth cleaning, but also on other occasions,
with an escort, to pursue the partial dentures. During this period of delay,
because of the stress relating to this situation, and his other serious medical
condition that was life threatening, Claimant asserts that he was on a liquid
diet, couldn't chew solid food, lost weight, and suffered mental anxiety, and
this forms part of his claim for damages. I note here that there is no claim
that any healthy teeth were indeed extracted, but merely that Claimant suffered
injury and damages for the period at Wende when the dentist did not proceed with
the ordering of his partial dentures.
Claimant filed several grievances relating to the lack of attention to this
matter at Wende (Exhibit 1). Appended to Claimant's demand for a bill of
particulars (Court Exhibit 1), are inmate grievance complaints dated February
16, 2000, February 22 (hard to read the exact day), 2000, February 23, 2000 and
March 17, 2000. All of these grievances seem to encompass the subject of this
claim. On February 25, 2000, in Grievance No. WDE-14543-00, the Superintendent
at Wende stated that on three occasions Claimant refused treatment when
scheduled to see the dentist and held that "[t]he Dentist is responsible for
determining the course of dental treatment that you require" which could not be
accomplished if Claimant refused to see the dentist (Claimant's Exhibit 1).
A similar grievance dated February 23, 2000 went to the Inmate Grievance
Resolution Committee (IGRC), and in a response dated March 17, 2000, it
recommended that the Claimant be given dentures and that his medical condition
should not be the factor for which the dentist denies treatment. Ultimately
this grievance was heard by the Inmate Grievance Program Central Office Review
Committee (CORC), where it was unanimously denied on May 3, 2000 (see Court's
Exhibit 1), and the CORC advised the grievant to follow the treatment plan
outlined by the dental staff, and that there was not sufficient evidence to
substantiate any malfeasance by the employees.
None of these grievances or their results support a finding of dental
negligence. All they show is that Claimant filed grievances complaining about
the dentist. They have no probative value in ascertaining whether the dentist,
and hence the Defendant, engaged in any culpable conduct.
Deacon Timothy T. Maloney had escorted Claimant to the Wende dentist's office
on some four or five occasions, as well as having numerous independent visits
with the dentist over a six to eight month period, all regarding this issue.
His involvement focused in large part on medical concerns that Claimant was not
eating and that factor, coupled with his medical condition, put his life at
risk. At one point, according to Deacon Maloney, the dentist had agreed to
resume the original Orleans plan, but that when Claimant did appear, there was a
disagreement between him and the dentist, at which point the dentist purportedly
told Claimant that he was through with him.
Dr. William Dawson, the Dental Director at Attica and the Western Region Dental
Director for the Department of Correctional Services (DOCS), encompassing ten
correctional facilities in that region, testified for the Defendant. Dr.
Dawson reviewed Claimant's dental records (Exhibit A), and noted that on
October 21, 1998, the seven extracted teeth were periodontally involved, and had
a hopeless prognosis. The records show that on March 9, 1999, Claimant was
examined by the dentist at Wende for the first time after his transfer on
February 12, 1999. According to these records, Claimant was seen at the
dentist's office either by the dental hygienist Maureen Keller or Dr. William S.
Mayes, the dentist, at least on April 26, 1999 (after Claimant failed to show on
April 12, 1999), on May 27, 1999, on September 22, 1999, on November 22, 1999
(when nine of Claimant's x-ray films were reviewed), and on February 7, 2000.
Indeed, contrary to the testimony of Claimant, and upon review of Claimant's
dental records for his entire time at Wende, the only tooth that Dr. Mayes
recommended extracting was tooth No. 29 on February 7, 2000, not all of
Claimant's remaining teeth. On the next day, February 8, 2000, when Claimant
had initially agreed to allow extraction of tooth No. 29, the chart notes that
the patient "became belligerent", refused to cooperate and walked out of the
dental office. Dr. Dawson opined that Claimant's dental care and treatment was
within the standards of care for patients being treated in DOCS' facilities. He
noted that there was a disagreement between Claimant and Dr. Mayes, and Claimant
was entitled to control his own dental care, and Claimant rejected the dental
advice to extract a badly infected tooth.
I reiterate here that the review of the dental records revealed no plan or
suggestion to extract all of Claimant's teeth. More specifically there was no
purported plan to remove tooth Number 13, which Claimant suggested was a healthy
tooth which Dr. Mayes had wished to extract.
Moreover, Dr. Dawson opined that Claimant's loss of teeth and general dental
condition would not have prevented Claimant from chewing his food. He also
opined that it was proper dental treatment within the accepted standard of care
not to have provided dentures to Claimant, consistent with DOCS policy that all
restorative work be completed before the preparation of dentures, and that it
was only after Claimant had restorative work done on several teeth after his
arrival at Attica in December 2000, that his dentures were prepared, consistent
with DOCS policy.
On January 11, 2001 there is a notation at Attica by Dr. Heinzerling, the
Attica dentist, reviewing Claimant's general dental condition, noting his
previous extractions, his poor dental hygiene, his emphatic rejection of any
further extractions, and an assessment that Claimant should be eligible for
partial upper and partial lower dentures, if he is compliant with treatment and
dental hygiene. On February 11, 2003 there is a request for the construction
(fabrication) of the partial upper and partial lower dental prosthesis, which
Dr. Dawson opined was within the proper standard of care (Exhibit A, pg.
Initially, it is necessary to determine whether Claimant's allegations were
based on a theory of dental negligence or on a theory of dental malpractice.
The theory of dental negligence is relegated to cases where the alleged
negligent acts are readily determinable by the trier of fact based on common
knowledge. However, when the propriety of the treatment received is called into
issue, the more specialized theory of dental/medical malpractice is applicable
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256;
Hale v State of New York
, 53 AD2d 1025, lv denied
In a medical/dental malpractice case, Claimant has the burden of proving
that the medical provider did not possess or did not use reasonable care or best
Hale v State of New York
, 53 AD2d 1025, lv denied
40 NY2d 804,
). Moreover, the Claimant has the burden of proving a deviation from
accepted standards of care and must produce evidence that the deviation was a
proximate cause of the injury sustained. To meet this burden and to make a
prima facie case of medical/dental malpractice, Claimant is required to present
expert medical testimony (Macey v Hassam
, 97 AD2d 919; Kennedy v
Peninsula Hosp. Center
, 135 AD2d 788). Since no such expert testimony was
presented, Claimant failed to establish a prima facie case of medical/dental
malpractice, and I dismissed that part of his claim which sounds in
Finally, to the extent that this claim could be construed as containing
allegations based upon medical/dental negligence, I find the proof lacking in
this regard as well. Any alleged negligent omissions or commissions by State
caregivers must be readily determined by the fact finder using common knowledge
without the necessity of expert testimony. However, this theory is limited to
"those cases where the alleged negligent act may be readily determined by the
trier of the facts based on common knowledge" (
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254,
at 256). Such cases have involved scalding a patient with a hot
water bottle (Phillips v Buffalo General Hospital
, 239 NY 188), leaving
an electric lightbulb under the sheets (Dillon v Rockaway Beach Hospital
284 NY 176), leaving a postoperative patient unattended in a bathroom
(Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254,
), and other similar circumstances.
There was nothing in the evidence to establish negligence on the part of the
dental providers, or to establish that anything done or not done by such
providers caused or contributed to any alleged injury sustained by Claimant.
The testimony of Dr. Dawson, reviewing the entirety of Claimant's dental records
from his initial intake to the provision of his partial upper and lower
dentures, demonstrates to me that Claimant received proper dental care and that
any delay in the ordering of the partial dentures stemmed from Claimant's
resistance to requisite restorative work on his other teeth, which necessarily
had to be completed first.
Moreover, even if there was a delay, Claimant has failed to establish that he
sustained any compensable injury. Indeed, his assertions that he could not eat
or chew because of his missing teeth were specifically disputed by the
Defendant's expert dentist. Claimant presented no proof of any injury or
damages which he sustained. In sum, Claimant has failed to establish a prima
facie case (
Mosberg v Elahi
, 176 AD2d 710, affd
80 NY2d 941; Wells v State
of New York
, 228 AD2d 581 and Quigley v Jabbur
, 124 AD2d 398).
Accordingly, the claim must be and hereby is dismissed.
All motions not heretofore ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.